Sunday, December 26, 2004

Yes, Virginia, You Do Have to Follow the Law 

A travesty is unfolding in Virginia as a former same-sex couple struggles over custody and visitation rights of their child. (Brief news blurb here). Lisa Miller-Jenkins gave birth to a daughter, conceived by artificial insemination, in Virginia. Her former partner, Janet Miller-Jenkins, had been given partial visitation rights by a Vermont court. The two had been civilly united in Vermont, but later split, and Lisa is now renouncing her lesbian past and is living in Virginia. A Virginia court has granted Lisa full custody because "Virginia does not recognize Vermont’s civil union law or rulings issued from it. An appeal has been filed.

No matter what one believes about same-sex marriage, civil unions, or traditional marriage, this one is a no-brainer: the Virginia court should enforce the Vermont judgment. I say this assuming a few facts: first, that the Vermont court's ruling was first-in-time; and second, that the civil union was dissolved in Vermont prior to the proceedings in Virginia. The decision is simply a matter of comity, and is required by the Full Faith and Credit Clause of the federal Constitution.

Same-sex marriage is a sticky interstate issue, but with these facts it should be a relatively easy decision. As I see it, a state must respect another state's judgment if the order came from a state that had jurisdiction over the matter. Here, Vermont clearly had such jurisdiction, being the domicile of both partners for a time, and being the state of civil union (family law experts may be able to correct me on this, but it seems right). There are no facts to suggest that Virginia is the sole proper forum for this dispute. Thus, Virginia is bound by the order just as if it were being asked to enforce a money judgment entered in another state, even if the law in Virginia doesn't recognize the same cause of action. For example, if I sue Nick for negligent infliction of emotional distress over events that occurred in California and win, Nick moves to Virginia, and I sue in Virginia to force payment, even if I could not have obtained a judgment for NIED under Virginia law, the court is still bound to force payment from Nick to me; i.e., give the California judgment Full Faith and Credit.

Same-sex divorce is no different. If Massachusetts were to divide up the community property of A and B, both males and married under Mass. law, and enter a judgment of divorce, agreement should be enforceable in any state of the union. A different situation, to my mind at least, would be if two married men were to travel to Virginia, accumulate property, and then ask the Virginia court to dissolve their marriage. The court could properly deny marriage status to the couple. The analogous situation, back to the above situation, is if I have a valid cause of action against Nick for his actions in California, but I sue him in Virginia. There is no judgment to enforce in Virginia, and so applying Virginia law to the events in California, I lose.

The only out is see for Virginia is if there is a "strong public policy" exception to enforcing the out of state judgment. For example, say state A allows slavery (putting aside federal constitutional issues) and grants a judgment to X from Y for harm to one of X's slaves. State B should not be made to enforce this judgment in its courts. The question then is whether same-sex marriage (or civil union, or domestic partnership for that matter) would be against the "stong public policy" of Virginia to where it could validly ignore the Vermont judgment. I'd say the answer is no.

The same term "strong public policy" is used in FF&C Clause jurisprudence for denying effect to a marriage of another state, i.e., whether Virginia would be required by the federal Constitution to recognize a valid Massachusetts same-sex marriage within its border. There is a dearth of federal FF&C Clause cases on marriage, and those I encountered very old, but from what I gather, procedural marriage differences were not against strong public policy (e.g., a valid common law marriage in state A must be recognized in state B even though state B doesn't have common law marriage), but the courts alluded that other invalid marriages (I'm assuming polygamous or incestuous) would not be forced on other states. As far as marriage recognition, I've argued elsewhere that same-sex marriage would fit under the "strong public policy" exception for FF&C recognition, not because it is especially harmful, but because it differs fundamentally from the contesting state's definition of marriage on a substantive level, not just procedurally. This is open to debate, but not one for this post.

However, an argument about whether a court should be exempt from recognizing another state's court judgment on the grounds that it violates a strong public policy (assuming such an exception exists) could not be based on the same procedure/substance distinction (as this would erode the FF&C Clause entirely), nor on whether the contesting state would need to recognize the marriage itself (which also seems incongruous with states respecting judgments for law it doesn't follow), but would instead need to rest on concrete moral harms of a very large magnitude, or be confined to wrongs prohibited by the federal Constitution. Same-sex marriage doesn't nearly rise to the level of slavery, acts of racial violence, or other gross injustices that should be shunned by a civilized society. At most, it is a fairly serious disagreement about a fairly serious tradition.

Of course, the reason the judge in Virginia refused to enforce the Vermont judgment is because of a strong belief about the fundamental wrong of same-sex unions. Hopefully the appellate court will follow the law instead of trying to engineer society from the bench.

(Author's note: I may very well have butchered any number of well settled doctrines of interstate law or family law, and please leave comments if I have done so, but what I tried to do was take a common-sense approach to the issue, informed by my knowledge in other areas of the law.)

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